Crossing borders

The U.S. Trafficking Victims Protection Act, 2000, while ostensibly aimed at protecting victims from violence during the crossing of borders, shows that it is primarily concerned with restricting the movement of people. The sub-text of this legislation, says RATNA KAPUR, focusses more on broader issues of migration, health and labour than the actual violence faced by commercial sex workers and other women during migration.

INTERNATIONALLY, there is an increased interest in addressing the issue of trafficking. It is generally presumed that legislative proposals addressing this issue are designed to protect persons crossing borders from the possible harms, violence and exploitation they may experience in the course of crossing borders. However, an analysis of the Trafficking Victims Protection Act, 2000, now pending before the U.S. Senate, reveals that such legislation is not only anti-migration, directed at curtailing the crossing of borders, but is also anti-women and directed against developing countries, as demonstrated through its moralistic and punitive provisions.

The U.S. bill is designed to "combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims." The main text of the bill focuses on "trafficking" as a major contemporary problem, which fosters other problems pertaining to "migration, economics, labour, public health and human rights." The problem of trafficking is linked at the outset to broader issues of migration, health and labour.

The term "trafficking" is not defined in the bill. The only definitions relate to "sex trafficking" and "severe forms of trafficking in persons". Most of the provisions are concerned with combating severe forms of trafficking, especially into the sex trade, slavery, and slavery-like conditions. The text is replete with the language of "luring", and "false promises" ostensibly made by traffickers to "innocent" victims, for a better, more prosperous life elsewhere. The use of this language reinforces the division between those who have deliberately transgressed sexual norms and those who have been "duped" into it.

The primary concern underlying the U.S. law is revealed in subsequent sections. The bill states that "Trafficking in persons substantially affects interstate and foreign commerce. The United States must take action to eradicate the substantial burdens on commerce that result from trafficking in persons and to prevent the channels of commerce from being used for immoral and injurious purposes." When read in the context of the explosion of cross border migration and labour, the issue of "foreigners" flooding the market and doing jobs for lower wages than U.S. citizens becomes increasingly evident.

The Act provides for the establishment of a task force, which includes the Director of the Agency for International Development and the Director of the Central Intelligence Agency. The duties of the task force include measuring and evaluating the progress of the U.S. and other countries around the world in the areas of trafficking prevention, protection and assistance to victims of trafficking and the prosecutions and enforcement of traffickers. The task force is also authorised to develop measures to combat the "sex tourism" industry, to facilitate in the strengthening of the local and regional capacities to prevent trafficking, prosecute traffickers and assist trafficking victims partly by reintegrating them into their place of origin.

There are some general proposals on how to prevent trafficking, which include setting up economic alternatives to prevent and deter trafficking, through USAID. However, there are no procedures set out for carrying out these prevention programmes apart from a direction to USAID to establish and carry out initiatives to enhance economic opportunity for potential victims of trafficking. Nor is there any criteria set out for determining who is a potential victim of trafficking. Would they include all women, only poor women, women active in the sex industry? And does enhancement of economic opportunity involve persuading governments to adopt an equal pay for work of equal value norm in determining women's pay, matrimonial property rights for women, determined according to the non-paid contribution she makes to the home and marriage? Does it include funding educational scholarships to upgrade a woman's skills?

Or is economic enhancement directed towards funding income generation programmes that reinforce economic dependency and perpetuate the ghettoisation of women's work?

The bill provides for the protection and assistance of victims of trafficking. The thrust of the assistance to be provided for victims in other countries include the reintegration or resettlement of victims and their children with the support of USAID in consultation with "appropriate" non-governmental organisations.

Certain victims in the U.S. are entitled to a temporary visa or "T" visa, to protect them from removal from the United States. But there is an annual cap of 5,000 such visas. This ceiling seems disproportionate to the 50,000 "victims of trafficking", which the Act itself states, who enter the U.S. And such visas are granted only if the victim can credibly establish her "victim" credentials.

Such proof includes that the person is a victim of a severe form of trafficking, has not attained the age of 15 or was induced to participate in the sex trade or slavery-like practices by force, coercion, fraud, or deception. There should be no evidence of voluntary agreement to any arrangement, including participation in the sex trade, and she should agree to provide reasonable assistance in the investigation or prosecution of trafficking acts. In addition, the "victim" must prove that she has a well- founded fear of retribution involving the infliction of "severe" harm if she is removed from the U.S. or will suffer extreme hardship in connection with the trafficking if she is removed from the U.S.

Thus, eligibility for a "T" visa is extremely strict. A woman who has consented to being transported across borders for the purpose of engaging in commercial sex, is not entitled to this visa, regardless of the abuse or violence she may have suffered during the course of the transport or while participating in a commercial sex act. Those entitled to a "T" visa include primarily persons who have been literally dragged across, or forced into crossing borders, or deceived into crossing borders and forced to engage in a commercial sex act or subjected to involuntary servitude, or slavery-like practices that are effected by force, coercion, fraud, or deception. If a woman has been subjected to all of these conditions, but has also been a sex worker, then she is not entitled to a "T" visa. Any benefits or assistance that may protect her human rights, would seem to be contingent on a woman's sexual status and conduct.

Any demonstration of agency or choice, such as the payment or receipt of money, at any point of this journey could jeopardise a person's eligibility for a "T" visa. The Attorney General is authorised to convert the "T" visa into a permanent resident status provided the victim has resided in the U.S. for three years and has been a person of "good moral character" during that period and has continued to assist in the investigation or prosecution of trafficking acts, and would be harmed if she were to be sent home. The overriding assumption of these provisions is that the victim must be able to demonstrate that she is not responsible for her condition. She is only entitled to the benefits and at least some limited rights under the Act if she is not a "willing" sex worker.

The bill also requires countries to demonstrate that they have fulfilled certain minimum standards for eliminating trafficking otherwise they will be subjected to sanctions. Such standards include enacting laws that deal with trafficking seriously and provide harsh punishment for such crimes. The U.S. is to provide assistance to foreign countries to meet the minimum criteria including the drafting of legislation to prohibit and punish acts of trafficking, investigation and prosecution of traffickers, and facilities, programmes, and activities for the protection of victims. Specific criteria for determining if a country has tried to eliminate trafficking are also laid down in the act, which include official monitoring of emigration and immigration patterns of its people for evidence of severe forms of trafficking. The combination of these provisions leaves little space for addressing the issue of consensual migration, even if it is illegal, nor the violation of the human rights of those who legally cross borders but are engaged in the sex industry.

The primary concern of the proposed U.S. legislation is to restrict the movement of people across U.S. borders. Trafficking becomes a guise for not only keeping people out, but also casting suspicion on those who go to the U.S. to work as nannies, domestic labour, dancers, factory workers or restaurant workers. All of these groups of workers are placed in a suspect category and subject to scrutiny at borders. The onus is on countries of origin, which are invariably regarded as "foreign" under the Act, to undertake effective measures to deal with the "problem of trafficking", that is to contain people within it's own borders.

If a government does not comply with the minimum standards dictated by the U.S. bill for eliminating trafficking, they are subjected to punitive sanctions, which include the withholding or denial of non-humanitarian assistance. If the country accused of failing to comply with the dictates of the new legislation does not receive non-humanitarian assistance from the U.S., the U.S. can deny funding for educational and cultural exchanges between the two countries. The President will also instruct the directors of multilateral banks and the International Monetary Fund, to vote against any loan or other funds to the erring government until it complies with the minimum standards. The President is also authorised to direct the freezing of assets located in the U.S. of a country, which fails to comply with the minimum criteria established under the act.

The extra-territorial reach of this legislation through the threat of sanctions is directed primarily at countries, which receive economic assistance and other forms of non-humanitarian aid from the U.S. The Act is concerned with the fact that there is a considerable increase in traffic across borders, especially from developing countries into the U.S. that needs to be arrested. Benefits under the act are contingent upon the victim status of a person - he or she must not have demonstrated any agency or exercised consent during the course of any part of the transaction and journey. And she must demonstrate a willingness to assist the U.S. government in investigating and prosecuting traffickers, which includes testifying at proceedings.

The paranoid approach to this "problem" is demonstrated by the extreme measures to be imposed on those countries, which fail to curtail the stream of migration and exit from their countries. Little distinction is drawn between migration and trafficking. And the fact that every border crossing can be rendered suspect given the broad assumption that a whole host of actors are characterised as being victims of trafficking, will render the crossing of borders more difficult.

Although the Act ostensibly prioritises concern for the victim, women who travel in connection with their work in the sex industry, and are lied to or betrayed during the course of that work, are not a concern. Access to benefits thus becomes partly conditional on a woman's chastity, purity and innocence. In 1996, the Global Alliance Against the Trafficking in Women (GAATW) and the Dutch Foundation Against Trafficking in Women (STV) have conducted a research project based on questionnaires circulated to groups working directly with "victims" of trafficking. Their research reveals that a large majority of the trafficking cases involve women who are in or know that they will be going into the sex industry, but are not accurately informed about the conditions of work or the amount of money they will receive.

The Act demonstrates how trafficking is being used to justify highly restrictive and punitive policies. There is also an assumption that traffickers exist out there, in the rest of the world, and the U.S. will cleanse the rest of the world through punitive economic responses and the denial of non-humanitarian aid. Economic punishments have been proven to harm more people than they help and do almost nothing to curtail the practice, but push it further underground, and invariably render the subject of trafficking even more vulnerable and dependent on non-state agents.

The problem with the U.S. proposal and many other anti- trafficking legislative initiatives, including the SAARC initiative, is that they do not address the harm and violence experienced by people who are moving across borders. Whether this movement is legal or illegal, for sexual or non-sexual considerations should not be the primary focus of these acts. However, an analysis of the U.S. proposal reveals that issues of force, violence and harm, receive insufficient consideration. Any effort to stop traffic across borders in the era of globalisation is bound to fail and will only push the "traffic" further underground, subjecting women to further possibility of exploitation, harm and abuse.

It is critical to endow women and other "travelers" with rights with which to fight these abuses, and to enable them to participate in the resistance against their own exploitation. The proposed rescue and rehabilitation measures that are the thrust of the U.S. proposal (as well as the Indian government, funders and a large number of women's groups in South Asia) are not only patronising in so far as they do not endow the victim with any agency or right to participate in their exit from the work or recovery, they are also unenforceable. Historically, laws which have attempted to promote rescue and rehabilitation strategies have invariably failed or been used to further persecute the very people such strategies are intended to protect. An evaluation of the miserable failure of these strategies in India is but one example.

Such efforts are neither respectful to the right to self- determination and autonomy of women, they miss their target altogether. Any other efforts are doomed to failure and insincere in their commitment to promote women's human rights, as well as to fight the abuse that is taking place in the course of new people's movement - crossing borders.

The author is Advocate. Centre for Feminist Legal Research, New Delhi.

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